1978 Supreme(Raj) 388
RAJASTHAN HIGH COURT
S.C.Agrawal, J.
M.P. Agarwal - Appellant
Versus
The State of Rajasthan and anr. - Respondent
S.B. Civil Writ petition No. 139 of 1975.
Decided On : 6-12-1978
Rule 9(1) of the Rajasthan Medical and Health Service Rules, 1963, was mandatory and required the Government to determine the number of vacancies and recruitment methods at the commencement of each year. Rule 9(2) allowed the carry forward of unfilled vacancies only in cases where vacancies remained unfilled due to non-availability of suitable candidates or similar reasons beyond the Government's control.
Headnote:
RAJASTHAN MEDICAL AND HEALTH SERVICE RULES, 1963 - RULE 9 - INTERPRETATION - MANDATORY OR DIRECTORY - CARRY FORWARD OF VACANCIES - CONDITIONS - APPOINTMENTS ON VACANCIES OF EARLIER YEARS - ELIGIBILITY - SENIORITY.
Fact of the Case:
Petitioner, a Civil Assistant Surgeon, challenged the appointment of respondent as Junior Specialist (Medicine) and his own reversion from Junior Specialist to Civil Assistant Surgeon. The issue arose from the interpretation of Rule 9 of the Rajasthan Medical and Health Service Rules, 1963, which dealt with the determination of vacancies and the carry forward of unfilled vacancies.
Finding of the Court:
The court held that Rule 9(1) was mandatory and required the Government to determine the number of vacancies and recruitment methods at the commencement of each year. Rule 9(2), allowing the carry forward of unfilled vacancies, was limited to cases where vacancies remained unfilled due to non-availability of suitable candidates or similar reasons beyond the Government's control. The court found that the Government's failure to fill vacancies in the years 1969 to 1971 was not due to such reasons and therefore, the vacancies could not be carried forward and filled in 1973.
Issues: 1. Whether Rule 9(1) of the Rajasthan Medical and Health Service Rules, 1963, was mandatory or directory. 2. Whether the Government could carry forward unfilled vacancies from previous years and fill them in a subsequent year. 3. Whether appointments on vacancies of earlier years could be made on the basis of eligibility existing at the time of appointment.
Ratio Decidendi: 1. Rule 9(1) was mandatory and required the Government to determine the number of vacancies and recruitment methods at the commencement of each year. This was necessary to give effect to the other provisions of the Rules and to prevent arbitrary and discriminatory practices. 2. Rule 9(2) allowed the carry forward of unfilled vacancies only in cases where vacancies remained unfilled due to non-availability of suitable candidates or similar reasons beyond the Government's control. The expression "or otherwise" in Rule 9(2) should be construed ejusdem generis with the preceding words "for non-availability of suitable candidates" and not given a wide construction to include inaction on the part of the Government. 3. Appointments on vacancies of earlier years could not be made on the basis of eligibility existing at the time of appointment. The Government was required to allocate vacancies according to the years in which they accrued and make appointments from amongst persons who were eligible for consideration at the time when the vacancies arose.
Final Decision: The court quashed the order appointing the respondent as Junior Specialist (Medicine) and directed that the vacancy be filled by making a selection from amongst persons who were eligible for consideration at the time when the vacancy had accrued.
JUDGMENT
1. - This petition under Article 226 of the Constitution has been filed by the petitioner Dr. M.P. Agrawal, for the issue of a writ of mandamus to quash the order of the State Government dated 19th January, 1973, appointing Dr. S.S. Shrivastava, respondent No. 2, to the post of Junior Specialist (Medicine) and also for the quashing of the order dated 31st October, 1974, whereby the petition for was reverted from the post of Junior Specialist (Medicine) to the post of Civil Assistant Surgeon, In the writ petition aforesaid, the petitioner has also prayed for the issue of an appropriate writ, cirecting the State Government to appoint the petitioner as Junior Specialist (Medicine) against the vacancies of the year 19?1 and or 1972.
2. The petitioner juined Government service as CAS (Civil Assistant Surgeon) on 3rd January, 1958. While working as CAS the petitioner obtained the degree of M.D. in general medicine in the year 1965. By order dated 17th July, 1970, the petitioner was pre rioted to the post of Junior Specialist (Medicine) on an afflicting basis. Dr. S.S. Srivastava, respondent No. 2. entered Government service as CAS in the year 1955. He obtained the M.D. Degree in Medicine in June, 1972. The pest of Junior Specialist (Medicine) forms part Rajasthan Medical and Helath Service and recruitment to the said post is governed by the Rajasthan Medical and Health Service, Rules, 1963 ('hereinafter referred to as the Rules'). Under the Rules, till the year 1967 recruitment for the post of Junior Specialist was made 100% by promotion from amongst (CAS. After 1967 the said recruitment was to be made in the ratio of 50% by promotion and 50% by direct recruitment. The qualifications prescribed for promotion to the said post was 3 years service after post graduation in the specialty or 8 years as CAS with post graudate qualification. Thus post graduate qualification was necessary for eligibility for promotion to the pest of Junior Specialist. During the years 1969 to 1971, 14 vacancies had occurred in the cadre of junior Specialist in general medicine out of which 7 vacancies had to be filled by promotion from amongst persons holding the post of Assistant Surgeon. It appears that the Departmental Promotion Committee did not meet during the said years and was convened only in the 5 ear 1973, and 7 persons, including respondent No. 2 were selected for promotion to the post of Junior Specialist (Medicine) and by order dated 19th January 1973, respondent No 2 was appointed as Junior Specialist (Medicine. In the order dated 19th January, 1973. as it was originally passed, it was stated that the appointment of respondent No. 2 was being made against the promotion quota of the year 1972. By a subsequent order dated January 10, 1974; the figure "1972" in the order dated 19th January, 1973 was deleted In so far as the petitioner is concerned his name was placed by the Departmental Promotion Committee in the list prepared under Rule 24(3) of the Rules, containing names of persons who had been selected to fill officiating vacancies already existing or likely to accrue till the next meeting of the Committee. The petitioner was appointed as Junior Specialist by order dated 22nd March, 1973 Subsequently, the order dated 31st October, 1974 was passed whereby the petitioner was reverted from the post of Junior Specialist to the substantive post of CAS. Aggrieved by the aforesaid order dated 19th January, 1973, appointing respondent No. 2 as a Junior Specialist and the order dated 31st October, 1974, reverting the petitioner from the post of junior Specialist to the post of CAS, the petitioner has filed this writ petition.
3. During the pendency of this writ petition the petitioner was appointed as Junior Specialist (Medicine) by order dated 9th July, 1975 and by order dated 21st July, 1977, the petitioner was appointed as Senior Specialist (Medicine). Respondent No. 2 was appointed as Senior Specialist (Medicine) by order passed earlier in M
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